War of the Whales: A True Story

by Joshua Horwitz

  In 2002 Balcomb reported the alarming population drop-off to the government review committee of biologists that met each year to assess the threatened and endangered status of animals under the Endangered Species Act. But it wasn’t until Balcomb filed declarations on behalf of a 2003 lawsuit by the conservation group Earthjustice that Fisheries finally agreed to designate the Southern Resident Community as “threatened.” A year later, based partly on Balcomb’s updated census data, Fisheries moved the local orcas onto its “endangered” list—the first and only killer-whale community to achieve that designation. Once listed as endangered, the orcas won a host of protections. Fisheries was required by the federal Endangered Species Act to designate a protected habitat and to closely monitor the community’s health and population size.

  Those protections were long overdue, in Balcomb’s view. But he had the satisfaction of knowing that three decades of self-funded summer surveys had finally benefited the whales. In 2005, 30 years after his first and only Fisheries-funded census in 1976, Balcomb and his Center for Whale Research was awarded a five-year Fisheries contract to survey the Southern Resident Community.

  • • •

  With so much public attention focused on whale strandings in the presence of naval sonar, the Office of Naval Research was under pressure to fund basic behavioral research—particularly the little-understood diving behavior of beaked whales. The interim report on the Bahamas stranding included a list of research initiatives proposed by Bob Gisiner, most of them focused on beaked whales in the Bahamas. Beginning in 2003, Gisiner funded Chris Clark and Peter Tyack to lead a series of tagging expeditions in the Bahamas to chart the diving and noise-response patterns of beaked whales.

  The shotgun-delivered steel darts of Balcomb’s early tagging expeditions had been replaced by high-tech electronic sensors designed by Mark Johnson, an engineer at Woods Hole Oceanographic. The challenge lay in attaching those sensors via suction cups to skittish beaked whales when they briefly surfaced for air. Clark and Tyack needed a local beaked whale expert to help them locate and tag the elusive creatures who lived near the AUTEC range, 100 miles southwest of Abaco. They approached Diane Claridge for help and offered her co-author credit on any resulting publications. She accepted.

  Infused with new funding and with forthcoming publication credits, Claridge launched the newly named Bahamas Marine Mammal Research Organisation in collaboration with her new research partner, Charlotte Dunn.

  • • •

  In 2004 Balcomb was diagnosed with advanced prostate cancer. He’ d gone without health insurance ever since leaving the Navy in 1975, and he had no savings. His doctor estimated the out-of-pocket expense of the recommended radiation treatment at $42,000. Balcomb wasn’t about to sell his house and boats to pay for the treatment. They were his bequest to the Center for Whale Research. His only other assets were the antique cars stashed in sheds around the property. Even if he could sell them for enough cash, he couldn’t see spending that kind of money on himself. One of his wives had called him penny and pound foolish, and he supposed she was right. But it just didn’t seem worth the expense.

  When word got out about his diagnosis, two donors to the Center for Whale Research offered to help. A Seattle-based radiologist, whom Balcomb had previously persuaded to conduct CT scans of stranded whales, offered Balcomb free radiation treatment for his cancer. Another sponsor donated the use of his small plane to ferry Balcomb back and forth to the mainland. Balcomb agreed, but only on condition that he could pilot the plane himself.

  2005

  Los Angeles Office of NRDC

  The accumulation of evidence from Haro Strait and the other mass strandings around the world increasingly pointed to midfrequency sonar as the culprit. But Reynolds knew that restraining the Navy’s use of midfrequency sonar would meet with intense resistance, both legally and politically.

  LFA sonar remained an experimental, long-range submarine detection system operating from just a few research vessels. Midfrequency sonar, by contrast, was the primary tactical submarine detection system mounted on virtually all the Navy’s warships—thanks to Admiral Dick Pittenger’s efforts in the 1980s. Details of its sonar capabilities were among the Navy’s most closely guarded secrets, which was one reason that the Navy had never submitted its training exercises for environmental review. If Reynolds went after midfrequency sonar in court, he assumed that the Navy would mobilize all of its resources to derail the litigation and would do everything in its power to defy a court-ordered injunction.

  But with consensus finally building in the scientific community about the link between sonar and mass strandings, it was hard for Reynolds to see an alternative to legal action.

  A 2004 report by the International Whaling Commission’s Scientific Committee concluded: “The accumulated evidence is very convincing and appears overwhelming, associating midfrequency military sonar with atypical beaked whale mass strandings.” Even more remarkably, a 2004 study of mass strandings by the military think tank the Jasons—a study commissioned by the Navy and co-authored by Walter Munk and a dozen other physicists—began by declaring: “We would like to state at the outset that the evidence of sonar causation is, in our opinion, completely convincing and that therefore there is a serious issue of how best to avoid and minimize future beaching events.”4

  Similar conclusions were reached in a 2005 study published by the International Council on the Exploration of the Seas, and another by the National Research Council. Within a few years of NRDC’s low-frequency sonar victory, almost all the major marine science organizations were sounding the alarm about sonar and whales.

  Europeans were taking coordinated steps to limit sonar exercises in their waters. The European Parliament called on its 25 member states to stop deploying high-intensity active naval sonar until more was known about the harm it inflicted on whales and other marine life. Citing the growing body of scientific research that confirmed “a significant threat to marine mammals, fish, and other ocean wildlife,” the resolution called on member states to “immediately restrict the use of high-intensity active naval sonars in waters falling under their jurisdiction.” Spain took the lead by banning sonar exercises in the waters surrounding the Canary Islands following the 2004 Majestic Eagle strandings.

  Having successfully lobbied Congress for its national security exemption, the Navy showed no interest in negotiating with NRDC over its midfrequency sonar trainings. The US military was waging wars in both Afghanistan and Iraq, so rallying the public to pressure the Navy for reforms was a long shot. But relying on the Navy’s internal Environmental Assessments was a certain formula for continued mass strandings. Litigation, Reynolds concluded, was the only stick that could move the Navy toward accountability and outside review.

  By 2005, Reynolds faced a fateful go/no-go decision. Filing a lawsuit was likely to instigate a series of actions and reactions inside the Navy, the Pentagon, the Congress, and the White House over which he’ d have no control. The Navy had a national security exemption in its back pocket, a virtual “Get out of jail free” card it could play at will. And even if he won a ruling in a lower court, Reynolds could expect the Navy to appeal it, if necessary, all the way up to the US Supreme Court.

  Reynolds reached out for assistance to Richard Kendall, the attorney who’ d helped him win the ship shock case back in 1994. Ten years on, Kendall was now a senior partner at Irell & Manella, where he represented Viacom, CBS, Paramount Pictures, and a host of other Hollywood heavyweights. Kendall was a successful-enough litigator to charge his clients top-of-the-market rates: at that time, over $700 an hour. But he agreed to help on a pro bono basis and to bring along several of his brightest young associates.

  Reynolds had recently bolstered his own legal team by recruiting a young attorney to replace Andrew Wetzler when he moved to NRDC’s Chicago office to focus on his own endangered species cases. Cara Horowitz had graduated first in her UCLA Law School class. She was as smart as Jasny and as calm in
a storm as Wetzler.

  Reynolds also lined up potential co-plaintiffs. His first call was to Naomi Rose at the Humane Society. But despite their successful partnership in opposing low-frequency sonar, Acoustic Thermometry, and ship shock, Rose couldn’t persuade her organization to sign on to the midfrequency case. The Humane Society deemed it too risky politically to take on the Navy with such a confrontational and high-profile lawsuit. Fortunately, Fred O’Regan of the International Fund for Animal Welfare and Jean-Michel Cousteau of Ocean Futures Society had no reservations. They were in.

  On October 19, 2005, NRDC and its co-plaintiffs filed suit against the US Navy for violations of environmental laws in its midfrequency sonar testing and training around the world. Reynolds decided to file in Los Angeles, where he knew the judges and where the coastline was particularly rich with marine life. US District Judge Florence-Marie Cooper, a Clinton appointee with decades of experience on the bench, was assigned the case from the wheel. When Reynolds filed “discovery” of the Navy’s sonar training records, the Navy lawyers protested that NRDC’s request was “overbroad and irrelevant.” Judge Cooper rejected their objections and ordered the Navy to produce most of the requested documents. As Reynolds had expected, the Navy leadership responded like a tiger jabbed with a sharp stick.

  * * *

  * To view the original video and sound recorded by Ken Balcomb in Haro Strait, go to: http://vimeo.com/35584781.

  27

  The Admirals Take Charge

  Office of the Chief of Naval Operations, the Pentagon

  Early on a Tuesday morning, an attorney from Operations stuck her head into Rear Admiral Pete Daly’s office. “You’re not going to believe this,” she said, “but the legal eagles over in Environmental Readiness are preparing to deliver a ton of sonar data that the California court ordered them to make public. You should take a look.” She handed Daly six fat folders filled with ships’ logs. “And this is just for the Atlantic ranges.”

  Daly was incredulous that Navy lawyers were preparing to release five years of classified operational data detailing the locations and capabilities of Navy sonar assets around the world. The 27-year veteran had served as antisubmarine warfare commander aboard a midfrequency sonar destroyer in the Pacific before commanding a destroyer, a destroyer squadron, and a carrier strike group in the Gulf. After commanding the Nimitz strike group in support of Operations Enduring Freedom and Iraqi Freedom, he was awarded his second star and assigned to the staff of the Chief of Naval Operations, Admiral Mike Mullen.

  By lunchtime, Daly had expressed his concerns to Mullen about handing over the sonar data. Mullen shared Daly’s outrage, both at the judge’s order and at the willingness of the Navy environmental compliance lawyers at N-45 to, well, comply with such an order. By day’s end, Mullen had arranged a sit-down between Daly, himself, and the new Navy Secretary, Donald Winter. Ever since Winter’s predecessor, H. T. Johnson, gave his blessing to the LFA settlement back in 2002, the admirals had regarded the secretariat with suspicion—and as a potential adversary in Fleet Command’s struggle to maintain control over its sonar exercises. They considered Secretary Winter, who had been CEO of defense contractor Northrop Grumman before his appointment by President Bush, as more of a businessman than a comrade in arms.

  Secretary Winter was sympathetic to the admirals’ expressed concern that the environmental compliance lawyers were “driving the bus over a cliff.” But when Admiral Mullen asked him to invoke the state secrets privilege in response to NRDC’s discovery motion, Winter demurred. The state secrets privilege was reserved for extraordinary cases where the government refused to turn over evidence to a court on grounds of national security. Winter wanted to develop a detailed rationale that he could defend in court before invoking the privilege. Otherwise the judge could overrule his request, and the last thing the Navy needed—he was sure they all agreed—was another poke in the eye from the judiciary. Mullen directed Daly to “work it up” with the Navy general counsel—but not with the lawyers at Environmental Readiness.

  Ultimately, the Navy invoked the state secrets privilege, which led to another round of furious briefings on all sides—and eventually, a compromise settlement was hammered out in Judge Cooper’s courtroom.

  In the meantime, the Navy responded by filing its own broad discovery motions aimed at NRDC’s co-plaintiffs. In particular, the Navy demanded that Jean-Michel Cousteau provide them with access to every foot of film and videotape he’ d shot of whales, going back ten years. With each side filing successive rounds of motions and objections, the case soon bogged down into legal trench warfare, with neither side able to gain an advantage.

  JULY 1, 2006

  Los Angeles

  Reynolds’ first gut check on litigating midfrequency sonar came a few months later, in the summer of 2006. The US Pacific Fleet was preparing to conduct eight days of joint sonar exercises with the navies of six Pacific Rim allies in the waters off Hawaii.1 Two years earlier, the same exercises had caused the panicked flight of 200 melon-headed whales into Hanalei Bay—although the Navy still contended that some rare combination of meteorological circumstances may have been to blame. In advance of these latest joint exercises, the Navy had prepared its usual Environmental Assessment, leading to its usual Finding of No Significant Impact. Since the Navy proposed to conduct the joint exercises in one of the most whale-rich environments in the Pacific, Reynolds thought this might be a strong test case for challenging midfrequency sonar.

  Reynolds and Jasny debated whether or not they should sue. Jasny worried that if they confronted the Pacific Fleet on the eve of a major exercise, the Navy would set a damaging precedent by invoking its new national security exemption. Their discussions turned into heated arguments. Voices were raised. Jasny had differed with Reynolds over strategy now and again, but this was the first time he believed his mentor was flat wrong. Suing the Navy over imminent international war games felt to Jasny like going over the falls in a barrel. Just the thought of it made him nauseous.

  Reynolds conferred with Kendall, who said he was ready to sue the Navy if Reynolds was. In the end, Reynolds decided the potential upside outweighed the risks. They’ d have the same moderate federal judge in that jurisdiction as in the case they filed in Los Angeles—Florence-Marie Cooper—who Reynolds bet was strong willed enough to stand up to the military. Given the near-disastrous melon-headed-whale incident during the previous joint exercises in these waters, he thought they had a reasonable chance to make good law and set an important legal precedent. Two days before the scheduled start of the joint exercises, NRDC filed suit, asking the judge to issue a temporary restraining order pending a hearing on a preliminary injunction.

  As Jasny had feared, Secretary of Defense Rumsfeld immediately granted the Navy a two-year national security exemption from the Marine Mammal Protection Act. It was the first time the Navy had invoked the exemption that Congress granted it three years earlier.

  The long Fourth of July weekend was a blur of speed-written briefs and reply briefs. On Monday, July 3, Judge Cooper stunned the Navy by issuing a temporary restraining order that blocked commencement of the international joint exercises. Judge Cooper ruled that regardless of its national security exemption from the Marine Mammal Protection Act, the Navy had violated another federal environmental statute, the National Environmental Policy Act, by failing to conduct a thorough environmental impact analysis. In issuing the temporary restraining order, she stated that “given the considerable convincing scientific evidence demonstrating that the Navy’s use of midfrequency sonar can kill, injure, and disturb many marine species, including marine mammals,” NRDC was “likely to prevail” in its lawsuit. The Navy quickly filed an emergency appeal with the US Court of Appeals for the Ninth Circuit.

  Meanwhile, Judge Cooper directed the Navy and NRDC to meet immediately to try to negotiate a settlement that would allow the exercises to proceed with increased safeguards in place. While the US and Pacific Rim navies idled in
the waters off the Hawaiian Islands, Reynolds and Kendall talked terms with the Navy’s lawyers. After several rounds of bids and counterbids, the Navy made its final settlement offer on Friday morning, July 7. If NRDC turned it down, the Navy would pursue its appeal, with a decision requested from the Ninth Circuit by noon.

  The Navy’s final offer included a 25-mile exclusion zone around coastal areas and the Northwestern Hawaiian Islands Marine National Monument, as well as other operational safeguards such as underwater, aerial, and ship-based surveillance for marine mammals. Reynolds was torn. The Navy’s position was less than he thought that NRDC—and the whales—deserved. But it was more than the Navy had ever agreed to for a midfrequency sonar exercise. If he didn’t settle for half of what he wanted now, Reynolds worried that he might lose it all in the court of appeals.

  The Navy had always claimed it couldn’t train under the restrictions of environmental safeguards. Its current willingness, under legal pressure, to submit to even partial limitations on its sonar training methods would set an important precedent, Reynolds believed. After conferring with his team, Reynolds decided to accept the Navy’s final offer.

  When Judge Cooper entered her settlement order, allowing the exercises to proceed with new safety measures in place, some of the more radical Hawaiian conservationists condemned the deal as a sellout by NRDC. Reynolds wasn’t surprised. He reminded himself that while some of his critics might be good at mobilizing public protests and press coverage, none of them had ever successfully sued the Navy over its use of sonar. As he’ d learned over the years, the hardest part of his job was deciding when to litigate and when to cut a good-enough deal, which—as in this case—was often on the table for only a brief moment. With this settlement, NRDC had now won significant concessions by the Navy in its deployment of both low-frequency and midfrequency sonar.